U.S. v. Smedley, 4:09 CR 99 CAS.

• Citation: 611 F.Supp.2d 971
• Decision Date: 22 April 2009
• Docket Number: No. 4:09 CR 99 CAS.,4:09 CR 99 CAS.
• Court: United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
• Parties: UNITED STATES of America, Plaintiff, v. Shawn SMEDLEY, Defendant.

611 F.Supp.2d 971

UNITED STATES of America, Plaintiff, v. Shawn SMEDLEY, Defendant.

No. 4:09 CR 99 CAS.

United States District Court, E.D. Missouri, Eastern Division.

April 22, 2009.

Carrie Costantin, Office of U.S. Attorney, St. Louis, MO, for Plaintiff.

MEMORANDUM AND ORDER

DAVID D. NOCE, United States Magistrate Judge.

This action is before the court upon the motion of defendant Shawn Smedley for a modification of his conditions of pretrial release. (Doc. 29.) A hearing was held on the motion on April 1, 2009.

Defendant Smedley is charged by indictment with receiving child pornography, on October 8, 2009, which had been sent in interstate commerce, in violation of 18 U.S.C. § 2252A(a)(2) (Count 1); and with possessing child pornography on October 8, 2009, in violation of 18 U.S.C. § 2252A(a)(5)(B) (Counts 2-5).

On February 2, 2009, Smedley was released on a secured appearance bond in the amount of $20,000.00 plus conditions of release which included, among others, that defendant: (1) report to and be supervised by the Pretrial Services Agency; (2) restrict travel to the Eastern District of Missouri and Troy, Illinois; (3) avoid all contact, directly or indirectly, with any persons who are or who may become a victim or potential witness in the subject investigation or prosecution; (4) refrain from possessing any firearm, destructive device, or other dangerous weapon; (5) submit to home detention; and (6) submit to electronic monitoring. (Doc. 6 at 2-3.) The Order Setting Conditions of Release described the home detention thus:

You are restricted to your residence at all times except for employment; education; religious services; medical, substance abuse, or mental health treatment; attorney visits; court appearances; court-ordered obligations; or other activities as pre-approved by the pretrial services office or supervising officer.

(Id. at 3.)

Defendant argues that the conditions of release ordered by the undersigned include those required by 18 U.S.C. § 3142(c)(1)(B), a portion of the Adam Walsh Child Protection Safety Act of 2006 (Adam Walsh Act), 109 P.L. 248 (July 27, 2006). Section 3142(c)(1)(B) provides "[i]n any case that involves a minor victim¹ under section ... 2252A(a)(2) ...," the basis for Count 1 of the indictment in this case, "any release order shall contain, at a minimum, a condition of electronic monitoring and each of the conditions" described in 18 U.S.C. § 3142(c)(1)(B), i.e. that defendant shall "(iv) abide by specified restriction on personal associations, place of abode, or travel," "(v) avoid all contact with an alleged victim of the crime and with a potential witness who may testify concerning the offense," "(vi) report on a regular basis to a designated law enforcement agency, pretrial services agency, or other agency," "(vii) comply with a specified curfew," and "(viii) refrain from possessing a firearm, destructive device, or other dangerous weapon." See 18 U.S.C. § 3142(c)(1)(B).

Defendant argues that the provisions of the Adam Walsh Act that require the imposition of specific conditions of release in cases involving a minor victim and which are prosecuted under 18 U.S.C. § 2252A(a)(2) violate the United State Constitution, specifically the Due Process Clause of the Fifth Amendment, the Excessive Bail Clause of the Eighth Amendment, and the separation of powers doctrine.

These arguments have met with some success in other courts. To date, seven cases have found the mandatory conditions of release of the Adam Walsh Act unconstitutional. United States v. Merritt, No. 4:09 CR 3009, 2009 WL 764554 (D.Neb. Mar.20, 2009) (statute violates procedural due process under the Fifth Amendment); United States v. Rueb, No. 4:09 CR 3006, 2009 WL 764552 (D.Neb. Mar.20, 2009) (same); United States v. Arzberger, 592 F.Supp.2d 590 (S.D.N.Y.2008) (statute violates procedural due process under the Fifth Amendment, but does not violate, on its face, the Excessive Bail Clause under the Eighth Amendment, or violate the separation of powers principle of the Constitution); United States v. Kennedy, 593 F.Supp.2d 1221 (W.D.Wash.2008) (statute violates procedural due process under the Fifth Amendment, the Excessive Bail Clause under the Eighth Amendment, and the separation of powers principle of the Constitution), motion to revoke order denied, 593 F.Supp.2d 1233 (W.D.Wash. 2009); United States v. Torres, 566 F.Supp.2d 591 (W.D.Tex.2008) (statute violates procedural due process under the Fifth Amendment and the Excessive Bail Clause under the Eighth Amendment); United States v. Vujnovich, No. 07-20126-01 CM DJW, 2007 WL 4125901 (D.Kan. Nov.20, 2007) (statute violates procedural due process under the Fifth Amendment, the Excessive Bail Clause under the Eighth Amendment, and the separation of powers principle of the Constitution), review denied, 2008 WL 687203 (D.Kan. March 11, 2008); United States v. Crowell, No. 06-CR-291E(F), 2006 WL 3541736 (W.D.N.Y. Dec.7, 2006) (same). Only one case has upheld the provisions against a constitutional attack. United States v. Gardner, 523 F.Supp.2d 1025 (N.D.Cal. 2007) (statute does not violate procedural due process under the Fifth Amendment, the Excessive Bail Clause under the Eighth Amendment, or the separation of powers principle of the Constitution).

Under the constitutional avoidance doctrine, the court should not consider the constitutionality of a statute if the propriety of the subject conditions of release imposed on Smedley can be resolved on another ground. United States v. Nat'l Treasury Employees Union, 513 U.S. 454, 478, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995); United States v. Allen, 406 F.3d 940, 946 (8th Cir.2005) (en banc); United States v. Kahn, 524 F.Supp.2d 1278, 1284 (W.D.Wash.2007) (avoiding the constitutional arguments because the Adam Walsh Act's provision for mandatory conditions of release did not apply).

In this case, Smedley argues that the mandatory nature of the Adam Walsh Act's provision regarding the imposition of certain conditions of release violates the Constitution. (Doc. 29 at 3) ("The Act violates the United States Constitution and cannot be imposed because it mandates imposition of the above-referenced conditions of release in every case without providing this or any other court the discretion to do otherwise."). As to the conditions other than home detention with electronic monitoring, defendant's argument is moot, because these conditions of release are necessary to reasonably assure defendant's presence in court and to protect the community, especially children, as required by the Bail Reform Act of 1984, 18 U.S.C. § 3142(c)(1).

First, the condition of release that defendant report to and be supervised by the Pretrial Services Agency is not among those required by the Adam Walsh Act. 18 U.S.C. § 3142(c)(1)(B). This is a condition of release that the court believes is a critical component of its pretrial supervision of almost all released defendants, including defendant Smedley. It enables the court to carefully monitor the defendant's activities before trial or other disposition of his case.

Next, the court imposed the condition that defendant's travel and abode be restricted to this judicial district, with permission granted at the defendant's request for him to travel to Troy, Illinois (outside this district), so that he could care for his mother. While travel restriction is one of the conditions required by the Adam Walsh Act, it is necessary in this case to reasonably assure that defendant will continue to appear in court as required. Defendant has been a Missouri resident for only two years, after residing in Illinois. If convicted, he faces a substantial mandatory minimum sentence of imprisonment and supervised release, which is a strong incentive for flight. He earns a substantial income which could finance flight.

Next, defendant was ordered to avoid all contact, directly or indirectly, with any persons who are or who may become a victim or potential witness in the subject investigation or prosecution. This condition of release was ordered generally to safeguard the process and operation of the court and was not ordered as a condition required by the Adam Walsh Act.

Next, defendant was ordered to refrain from possessing any firearm, destructive device, or other dangerous weapon. This condition is ordered by the court in most cases, most of which do not involve the Adam Walsh Act. This condition is a precaution to safeguard pretrial services officers who will have contact with the defendant in their supervisory activities. Further, this condition is indicated by federal statutes that make it a crime for someone to sell or dispose of a firearm or ammunition to someone known to be under indictment for a felony offense, 18 U.S.C. § 922(d), or for someone, who is under indictment for a felony to receive a firearm or ammunition that has been shipped in interstate commerce, 18 U.S.C. § 922(m).

Most strenuously, Smedley argues against the imposition of home detention with electronic monitoring. In this respect, the court cannot say that it would have ordered a curfew, which is a component of home detention, with electronic monitoring, without the requirement of the Adam Walsh Act. Therefore, as to these conditions of release, defendant's arguments are not moot.

Procedural Due Process

The Due Process Clause of the Fifth Amendment guarantees that "No person shall ... be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. This guarantee protects individuals against two types of government action. United States v. Salerno, 481 U.S. 739, 747, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Substantive due process prevents the government from engaging in conduct that shocks the conscience or that interferes with "rights implicit in the concept of ordered liberty." Id. Procedural due process insures that any government action that deprives a person of life, liberty, or...